The Central Bank, in addition to the Fitness and Probity Standards (“Standards”) and related Guidance has also published frequently asked questions (“FAQs”) to address commonly asked questions raised in relation to the Fitness and Probity (“F&P”) regime. Although the FAQs have no legal status, they would essentially be regarded as of persuasive authority. On 5 March 2013, the Central Bank issued updated FAQs dealing with matters relating to re-appointments to certain roles set out below. Following requests for clarification on certain matters from various industry sources including William Fry, the Central Bank further revised the FAQs and the following sets out the clarified position:
Re-election/Re-appointment to a Pre-approval Controlled Function
Individuals occupying pre-approval controlled functions (“PCFs”) (i.e. functions within a regulated firm requiring the persons occupying them to have been approved in advance by the Central Bank under the new F&P regime to undertake the roles in the particular firm e.g. the role of non-executive director) who were “in-situ” at the time of the introduction of the Fitness and Probity regime on 1 December 2011 were required to undergo a due diligence process by their firm by 31 March 2012 so as to confirm whether or not they complied with the requirements of the Standards. Section 3.17 of the updated FAQs requires that those individuals, who were able to take advantage of these grandfathering requirements under the F&P regime, if they are subject to re-election/re-appointment (e.g. a director of a fund company who is required to retire by rotation and puts himself forward for immediate re-election) must submit an individual questionnaire (“IQ”) to the Central Bank. This is because the retirement is regarded by the Central Bank as a “break in service” for the purposes of the Standards. However, once the individual has been approved by the Central Bank once in respect of that role within that firm under the new F&P regime, he/she will not be required to undergo the process again as long as he/she remains in that role. The Board of the firm will however be required to confirm to the Bank upon further re-election/re-appointment that his/her circumstances have not changed since pre-approval was granted. The Central Bank will not require IQs to be submitted for persons who were “in situ” in their PCF roles as at 1 December 2011 and who subsequently retired and were re-elected during the period 1 December 2011 to the date of issue of the revised FAQs (i.e. 5 March 2013) until they are next due for re-election (Section 3.19).
Renewal of Employment Contracts
Section 3.18 of the FAQs also provides that PCFs in situ as at 1 December 2011 who are subject to employment contract renewals must also submit a duly completed IQ to the Central Bank. This does not typically apply to fund companies, which generally do not have employees.
Contributed by Patricia Taylor
